Naked and intoxicated, and armed with a hunting knife, Albert Dirickson broke into the home of Lyndell and Nedra Martin. Dirickson stabbed Nedra and two of her sons, who were 11 and 16 years of age. Soon after Dirickson was charged, he gave notice that he intended to raise mental defect as a defense, and the court ordered Dirickson to undergo a mental evaluation. While awaiting trial, Dirickson began suffering from headaches, and a CAT scan revealed that he had a malformed (dysgenetic) corpus callosum. The defense subsequently obtained several continuances, all relating to the evaluation of Dirickson's mental condition.
The psychologist who performed the court ordered mental evaluation of Dirickson found that the defendant was competent to stand trial, as well as being capable, at the time of the offense, to have the necessary mental state to be held criminally responsible for his actions. The neuropsychologist who conducted a forensic evaluation of Dirickson found that his corpus callosum had "no connection" to his criminal behavior. A month after receiving these reports, the defense asked for supporting documents from the evaluations.
Some time after receiving these documents, Dirickson asked the court for another continuance and for funds to help pay for two other neurological examinations. The neuropsychologists, in their affidavits, claimed that severe behavioral disorders can occur with agenesis of the corpus callosum, and that Dirickson had not been adequately evaluated and was in need of further examinations. Citing the defendant's intoxication at the time of the offense and the fact that one of the neuropsychologists was paid for his opinion, the court denied the defendant's request. Dirickson was convicted of several felonies and was sentenced to 140 years in prison. The defendant appealed to the Supreme Court of Arkansas, arguing that under the U.S. Supreme Court's holding in Ake v. Oklahoma, he was entitled to the additional evaluations.
Holding: The trial court did not abuse its discretion, and the defendant's conviction was affirmed. The court looked at Ake and the relevant state statute and held that a defendant, while entitled to an examination by the state hospital, is not entitled to have the state pay for him "to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial." In support of its decision, the court pointed to the fact that the defense waited for the state's medical report before seeking evaluations of its own, including waiting a month after seeing the state's report to request the supporting documents. The court also noted that the existence of alcohol as a factor in Dirickson's behavior would have limited the impact of his proposed experts. As a result, the defendant failed to show that the probable effect of the additional evaluations would be a finding that he was incapable of appreciating the criminality of his conduct.
Three justices dissented, arguing that the defendant had made an adequate showing that the denial of the additional examinations resulted in an unfair trial.
Mark Mire and his dog walked into Daiquiri Magic, a lounge located near the trailer park in which Mire lived. According to witnesses, several of the patrons made disparaging remarks about Mire's dog. Soon after he was asked to leave the bar.
Shortly after returning to his trailer, Mire, sitting in his van drinking a beer, was approached by a neighbor, Rodney Cavell. Mire told Cavell that he was waiting for one of his other neighbors, Raymond Borskey, to return home. Borskey had also been at Daiquiri Magic that night. Mire went on to tell Cavell that Borskey had made fun of his dog, so he planned on killing him. Cavell tried to convince him otherwise, but was unsuccessful.
Shortly thereafter, Borskey returned home with his girlfriend, where they were met by Mire, who was armed with his shotgun. Borskey gave the keys to his girlfriend, telling her to go into the house and call 911. Before she could open the front door she heard a shotgun blast. Mire had shot Borskey in the back of the head, killing him. Mire fled to the woods, and after receiving a tip from neighbors as to where Mire would be, the police found and arrested Mire. He was charged with second degree murder.
The trial court appointed two psychiatrists to examine Mire, both of whom found him to be competent to stand trial and sane at the time of the murder. A third physician, who had performed the autopsy on Borskey, also found Mire both competent to stand trial and sane at the time of the murder. The trial court then granted a defense motion allowing the defense to spend up to $2,000.00 to have Mire examined by a fourth doctor, an independent health expert. That doctor testified that after meeting with Mire for six hours his results were "somewhat mixed" and that there was a possibility Mire suffered from a mental disorder. His recommendation was that the defendant be moved to a forensic facility for one to two weeks of more elaborate testing. The trial court, noting that two psychiatrists had already found
He recommended a transfer to a forensic facility.
Mire to be sane, and that the expert only believed that there was a possibility of mental illness, ruled that the transfer was not necessary. He opined that such an examination to rule out a possibility would only lead to more examinations if no problem was found during this one. Mire appealed.
Holding: The trial court correctly denied the motion, and the conviction was affirmed. The court of appeal, also citing Ake, held that since three physicians had found Mire sane, and a fourth only raised the possibility of illness, the value of additional testing would be "marginal at best," and thus did not warrant the delay and expense of the additional testing.
| Ralph Slovenko Professor of Law and Psychiatry Wayne State University |
Professor Slovenko comments: In 1985 the U.S. Supreme Court in Ake v. Oklahoma recognized the right of an indigent defendant to obtain psychiatric assistance. Ake gave the right to the assistance of a psychiatrist constitutional underpinning; that of due process. Due process, the Court said, requires that the indigent accused be equipped with the "basic tools" to ensure a proper functioning of the adversary process." The Court concluded:
"We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. That is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist... and as in the case of the provision of counsel we leave to the state the decision on how to implement this right."
Since 1985 state courts have construed Ake with widely varying results. Some courts restrict the ruling to capital cases, and others to psychiatric experts testifying about the insanity defense. In 1987, the Eleventh Circuit in Moore v. Kemp set out an oft-quoted two pronged test, a test that would be Dirickson's downfall: The defendant must establish a reasonable probability that (1) an expert would be of assistance to the defense and (2) the denial of an expert would result in a fundamentally unfair trial.
Meeting this standard poses a "catch-22" situation, since the standard demands that the defendant already possess the expertise of the witness sought. As a result, in many cases like Dirickson, the failure to satisfy this burden has been a common basis for denying an indigent defendant's request for an expert. Two examples of recent cases where the defendant failed to meet this burden are People v. Leonard, 569 N.W.2d 663 (Mich. 1997), (DNA expert) and State v. Mire, 700 So.2d 566 (La. 1997), (neurological and neuropsychological exams).
Meeting the Ake standard poses a Catch-22 situation.
The promise of Ake remains largely unfulfilled. Saltzburg and Capra concluded in their book AMERICAN CRIMINAL PROCEDURE (4th ed. 1992), "Generally speaking the courts have read Ake narrowly, and have refused to require appointment of an expert unless it is absolutely essential to the defense." And one might add, the courts have read Ake narrowly because of the many frivolous requests for assistance.
